IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 8116 OF 2003

T. Narasimhulu & Ors.                                 …     Appellants

Versus

State of A. P. & Ors.                                      … Respondents

WITH

CIVIL APPEAL NOs. 8082 OF 2003, 8083 OF 2003  AND 8088 OF 2003

J U D G M E N T

A. K. PATNAIK, J.

These are appeals against the judgment and order dated  

05.04.2002 of the Division Bench of the Andhra Pradesh High  

Court in a batch of Writ Petitions Nos. 14689 of 2001, 25322  

of 2001, 24420 of 1997 and Writ Petition No.22926 of 2001  

(for short  ‘the impugned judgment’).

2. The relevant facts very briefly are that on 28.07.1983 the  

Government  of  India  sent  a  Circular  to  all  the  State

Governments  to  depute  the  Forest  Range  Officers  who  

have passed the Forest Ranger Course with honours for  

admission to two year course at the State Forest College  

for  the  post  of  Assistant  Conservator  of  Forest.   In  

response  to  the  Circular,  the  Government  of  Andhra  

Pradesh sent the Forest Range Officers, who had secured  

honours in Forest Ranger Course, on deputation to the  

State  Forest  College  for  training  as  Assistant  

Conservators of Forests during the period 08.04.1986 to  

23.06.1994.   On  13.11.1994,  the  Andhra  Pradesh  

Administrative  Tribunal  delivered  a  judgment  in  O.A.  

No.3258 of  1994 holding that the deputation of  Forest  

Range Officers, namely, Sri B. Narayan Reddy and Sri T.  

P. Thimma Reddy, for training as Assistant Conservators  

of  Forests  was contrary  to  the  Andhra  Pradesh Forest  

Service Rules, 1965 (for short ‘the Forest Service Rules’).  

On  29.05.1995,  the  Government  of  Andhra  Pradesh  

issued G.O.Ms. No. 35 adding a proviso to Rule 2 of the  

Forest  Service  Rules  that  Forest  Range  Officers  who  

secured  first  and  second  ranks  in  their  batches  for  

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Honours in Ranger’s Training Course shall be eligible for  

appointment as Assistant Conservators and this G.O.Ms.  

No.  35  was  published  in  the  Gazette  of  the  Andhra  

Pradesh  on  01.06.1995.   On  03.07.1995,  the  Andhra  

Pradesh  Government  issued  G.O.Ms.  No.51  amending  

this proviso to Rule 2 of the Forest Service Rules so as to  

provide that Forest Range Officers who secured Honours  

in their batches in the Rangers Training Course shall be  

eligible  for  appointment  as Assistant  Conservators  and  

this  G.O.Ms.  No.51  was  published  in  the  Gazette  of  

Andhra  Pradesh  on  12.09.1996.   The  appellants  who  

were  working  as  Assistant  Conservators  of  Forests  

challenged  the  amendments  to  Rule  2  of  the  Forest  

Service  Rules  by  G.O.Ms.  No.35  and  G.O.Ms.  No.51  

before the Andhra Pradesh Administrative Tribunal and  

thereafter  before  the  High  Court.   By  the  impugned  

judgment,  the  Division  Bench  of  the  High  Court  has  

dismissed the Writ Petitions.   

3. Mr. L. Nageshwar Rao Rao, learned counsel appearing for  

the  appellants  in  Civil  Appeal  No.8116  of  2003,  

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submitted that a bare perusal of the G.O.Ms. 35 dated  

29.05.1995 and G.O.Ms. No.51 dated 03.07.1995 would  

show  that  the  Government  Orders  directing  that  the  

amendments  shall  be  deemed to  have  come into  force  

from 08.04.1986 was not part of the Notification which  

was  published  in  the  Gazette.   He  submitted  that  the  

amendments  by  G.O.Ms.  Nos.  35  and  51  are  

amendments to Rule 2 made under the proviso to Article  

309  of  the  Constitution  and  although  the  proviso  to  

Article  309 of  the  Constitution  does  not  prescribe  any  

specific  mode  of  publication  of  the  Rules  made  

thereunder,  the  amendments  are  required  to  be  

published in the same manner in which the Rules made  

under an Act are published.  He referred to Section 21 of  

the Andhra Pradesh General Clauses Act which provides  

that even where an Act or Rule provides for publication  

merely  but  does  not  say  expressly  that  it  shall  be  

published in the Official Gazette, it would be deemed to  

have  been duly  made  if  it  is  published  in  the  Official  

Gazette.   He  cited  a  decision  of  this  Court  in  I.T.C.   

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Bhadrachalam  Paperboards  & Anr.  v.  Mandal  Revenue  

Officer, A. P. & Ors. [(1996) 6 SCC 634] in support of this  

submission.  He vehemently submitted that although the  

amendments made to Rule 2 by G.O.Ms. Nos. 35 and 51  

were published by a notification in the Official Gazette,  

the portion of the Government Order in G.O.Ms. NOs. 35  

and  51  directing  that  the  amendments  would  have  

retrospective effect from 08.04.1986 was not published in  

the notifications in the Official Gazette.  He argued that  

the legal consequence is that the amendments to Rule 2  

made  by  G.O.Ms.  NOs.  35  and  51  would  have  only  

prospective effect.  In other words, the amendments by  

G.O.Ms.  Nos.  35  and  51  would  have  effect  from  

19.05.1995  and  03.07.1995  respectively  and  will  not  

have retrospective effect from 08.04.1986.

4. Mr.  P.S.  Patwalia,  learned  counsel  appearing  for  

Respondent Nos. 3, 4, 7, 8, 12, 13 and 14 (the private  

respondents), in reply, submitted that Article 309 of the  

Constitution  does  not  prescribe  any  specific  mode  of  

publication for the rules made under the Article and all  

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that is required is that there should be some reasonable  

mode of publication so that the affected parties are made  

aware of  the factum of  promulgation of  the rules.   He  

further submitted that in Chandra Prakash Tiwari & Ors.  

v.  Shakuntala Shukla & Ors.   [(2002) 6 SCC 127], this  

Court  has  held  that  where  the  parties  were  actually  

aware of the fact that the rules have been published, the  

argument that the rules were not actually published is a  

hyper-technical one.   

5. We  are  unable  to  accept  the  submission  of  Mr.  

Nageshwar Rao that portion of the Government Orders in  

G.O.Ms. Nos. 35 and 51 directing that the amendments  

to  Rule  2  therein  would  have  retrospective  effect  from  

08.04.1986 were required to be published in the Official  

Gazette.  A plain reading of G.O.Ms. Nos. 35 and 51, copy  

of  which  has  been  annexed,  would  show  that  the  

amendments to Rule 2 of the Forest Service Rules made  

therein are in exercise of powers conferred by the proviso  

to  Article  309  of  the  Constitution.   Article  309  of  the  

Constitution is extracted hereinbelow:

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“309.  Recruitment and conditions of service of  persons serving the Union or a State.—Subject to  the  provisions  of  this  Constitution,  Acts  of  the  appropriate  Legislature  may  regulate  the  recruitment,  and  conditions  of  service  of  persons  appointed,  to  public  services  and  posts  in  connection with the affairs of the Union or of any  State:  

Provided  that  it  shall  be  competent  for  the  President or such person as he may direct in the  case of  services and posts in connection with the  affairs of the Union, and for the Governor of a State  or such person as he may direct in case of services  and posts in connection with the affairs of the State,  to make rules regulating the recruitment, and the  conditions of service of persons appointed, to such  services and posts until provision in that behalf is  made  by  or  under  an  Act  of  the  appropriate  Legislature  under  this  Article,  and  any  rules  so  made shall have effect subject to the provisions of  any such Act.”   

  Article 309, quoted above, would show that under the main  

provision of  the Article,  Acts of  appropriate  Legislature may  

regulate the recruitment and conditions of service of persons  

appointed to public services and posts in connection with the  

affairs of Union or of any State.  The proviso to Article 309 of  

the Constitution, however, states that until provision in that  

behalf  is  made  by  or  under  an  Act  of  the  appropriate  

Legislature under this Article, the President or the Governor,  

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as the case may be, or any such person as they may direct,  

make  rules  regulating  the  recruitment  and  conditions  of  

service  of  persons appointed,  to such services  and posts  in  

connection  with  the  affairs  of  the  Union  or  of  any  State  

respectively.  The proviso to Article 309 further says that “any  

rules so made shall have effect subject to the provisions of any  

such Act” made under Article 309 of the Constitution.  The  

words “any rules so made shall  have effect” signify that the  

rules will become operative subject only to the provisions of  

the Constitution and the provisions of any Act made by the  

appropriate Legislature under Article 309 of the Constitution.  

Hence, Section 21 of the Andhra Pradesh General Clauses Act,  

which  provides  that  where  in  any  Act,  or  any  rule  passed  

under  any Act,  it  is  directed that  any order,  notification or  

other matter shall be notified or published, such notification  

or  publication  shall,  unless  the  Act  otherwise  provides,  be  

deemed  to  be  duly  made  if  it  is  published  in  the  Official  

Gazette, has no application whatsoever to a rule made under  

the proviso to Article 309 of the Constitution.   

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6. In  I.T.C.  Bhadrachalam  Paperboards  & Anr.  v.  Mandal   

Revenue Officer, A. P. & Ors. (supra) cited by Mr. Rao, one  

of  the questions which arose for  decision was whether  

the  publication  of  the  exemption  notification  in  the  

Andhra Pradesh Gazette as required by Section 11(1) of  

the Andhra Pradesh Non-Agricultural Lands Assessment  

Act,  1963 was mandatory or merely directory and this  

Court  held  after  considering  its  earlier  decisions  that  

where  the  parent  statute  prescribes  the  mode  of  

publication or promulgation that mode has to be followed  

and that such a requirement is imperative and cannot be  

dispensed with.  The Court, in particular, held that where  

a power is conferred to exempt a class of persons from  

the levy created by a statute upon another authority by  

the legislature, that authority has to, and can, exercise  

that  power  only  in  strict  compliance  with  the  

requirements of the provision conferring that power and  

it  is  in  the  interest  of  the  general  public  that  such  

notifications are not only given wide publicity but there  

should also be no dispute with respect to the date of their  

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making  or  with  respect  to  the  language  and  contents  

thereof.   In  the  present  case,  the  facts  are  entirely  

different.  As we have seen, the amendments to Rule 2 of  

the Forest Service Rules by G.O.Ms. Nos. 35 and 51 with  

retrospective effect are sought to be made in exercise of  

powers conferred under the proviso to Article 309 of the  

Constitution and not in exercise of any power conferred  

by  any  Act  made  by  the  State  Legislature  and  the  

Constitution or any appropriate Act made under Article  

309 of the Constitution does not prescribe any mode of  

publication  of  rules  made  under  the  proviso  to  Article  

309.   

7. This is not to say that rules made under the proviso to  

Article  309  of  the  Constitution  are  not  required  to  be  

published at all.  A rule made under the proviso to Article  

309 of the Constitution has the same effect as an Act of  

appropriate  Legislature  regulating  the  recruitment  and  

conditions  of  service  of  persons  appointed  to  public  

services and posts in connection with the affairs of the  

Union or of any State.  Hence, even if Article 309 of the  

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Constitution does not say that the rules made under the  

proviso thereto are required to be published, these rules  

are required to be published just as any other Act passed  

by the appropriate Legislature is required to be published  

so that the persons affected by the rules or the Act are  

aware of the rule or the Act.  In  Harla v.  The State  of  

Rajasthan [AIR 1951 SC 467] this Court held:

“…. Natural justice requires that before a law can  become  operative  it  must  be  promulgated  or  published.  It  must  be  broadcast  in  some  civilized11way so that all men may know what it is  or, at the very least, there must be some special rule  or regulation or customary channel by or through  which  such  knowledge  can  be  acquired  with  the  exercise  of  due  and  reasonable  diligence.  The  thought  that  a  decision  reached  in  the  secret  recesses of a chamber to which the public have no  access  and  to  which  even  their  accredited  representatives have no access and of  which they  can normally know nothing, can nevertheless affect  their lives, liberty and property by the mere passing  of a Resolution without anything more is abhorrent  to  11civilized man. It shocks his conscience. In the  absence  therefore  of  any  law,  rule,  regulation  or  custom, we hold that a law cannot come into being  in  this  way.  Promulgation  or  publication  of  some  reasonable sort is essential.”

Also in State of Maharashtra v. Mayer Hans George [AIR 1965  

SC 722] this Court held:

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“…… Where there is a statutory requirement as to  the mode or form of publication and they are such  that, in the circumstances, the Court holds to be  mandatory,  a  failure  to  comply  with  those  requirements  might  result  in  there  being  no  effective order the contravention of which could be  the subject of prosecution but where there is no  statutory requirement we conceive the rule to be  that it is necessary that it should be published in  the  usual  form  i.e.  by  publication  within  the  country  in  such  media  as  generally  adopted  to  notify to all the persons concerned the making of  rules ….  .”

8. It will be clear from the law laid down by this Court that  

where the law prescribes the mode of publication of the  

law to become operative, the law must be published in  

that mode only, but where the mode of publication of the  

law is  not  prescribed by  the  law,  such law should  be  

published in some usual or recognized mode to bring it to  

the knowledge of all persons concerned.   In the present  

case, the contention of the appellants before the Tribunal  

or the High Court was not that the Government Order in  

G.O.Ms. Nos. 35 and 51 that the amendment to Rule 2 of  

the Forest Service Rules would have retrospective effect  

from  08.04.1986  was  never  made  known  by  any  

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reasonable mode, but that it  was not published in the  

Official Gazette.  This contention of the appellants, as we  

have seen, has no merit.   

9. Mr. Rao next submitted that Rules under the proviso to  

Article  309  of  the  Constitution  can  be  made  by  the  

President  or  the  Governor,  as  the  case  may  be,  with  

retrospective  effect,  but  if  such  Rules  made  with  

retrospective effect affect a vested right of a Government  

servant,  the  same  will  be  ultra  vires Article  14  of  the  

Constitution.   He  submitted  that  in  the  seniority  list  

published  on  15.12.1988  the  appellants  were  shown  

senior  to  respondents  3  to  14  (private  respondents)  

having  been  appointed  to  the  cadre  of  Assistant  

Conservators of Forests by direct recruitment earlier than  

the  private  respondents,  but  as  a  consequence  of  the  

retrospective effect of the amendments to Rule 2 of the  

Forest  Service  Rules  by  G.O.Ms.  Nos.  35  and  51,  the  

private  respondents  will  be  shown  senior  to  the  

appellants  in  the  seniority  list.   He  referred  to  the  

observations of this Court in para 24 at page 638 of the  

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judgment  in  Chairman,  Railway  Board  &  Ors.  v.  C.R.  

Rangadhamaiah & Ors. [(1997) 6 SCC 623] that in many  

decisions of this Court the expressions ‘vested rights’ or  

‘accrued rights’ have been used while striking down the  

impugned provisions which had been given retrospective  

operation so as to have an adverse effect in the matter of  

promotion, seniority, substantive appointment, etc. of the  

employees.   He  argued  that  since  the  seniority  of  the  

appellants had been adversely affected by amendments to  

Rule  2  by  G.O.Ms.  NOs.  35  and  51  made  with  

retrospective  effect  from  08.04.1986,  the  amendments  

take away the vested rights  or  accrued rights  and are  

liable to be struck down by the Court.  

10. In reply, Mr. Patwalia submitted that in S. S. Bola & Ors.  

v. B.D. Sardana & Ors. [(1997) 8 SCC 522] a three-Judge  

Bench of this Court has taken a view that a particular  

position in the seniority list within a cadre can neither be  

said  to  be  accrued  or  vested  right  of  a  Government  

servant and that an Act of the State Legislature, which  

has  retrospective  effect  and  which  affects  seniority  of  

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Government servants, cannot held to be  ultra vires the  

Constitution.  He submitted that the private respondents,  

who were Forest Range Officers and were deputed to the  

State  Forest  College  in  accordance  with  Government  

Orders,  had been treated as direct  recruits of  different  

years to the posts of Assistant Conservators of Forests  

pursuant to the G.O.Ms. Nos. 35 and 51 and that the  

seniority  in  the  cadre  of  the  Assistant  Conservators  of  

Forests have to be determined vis-à-vis the appellants,  

who  were  also  direct  recruits  in  accordance  with  the  

relevant  seniority  rules.    He  submitted  that  the  

contention  of  the  appellants  that  their  vested/accrued  

right to seniority has been affected by the amendments to  

Rule  2  of  the  Forest  Service  Rules,  is,  therefore,  

misconceived.   

11.      In  Chairman,  Railway  Board  &  Ors.  v.  C.R.  

Rangadhamaiah & Ors. (supra), cited by Mr. Nageshwar Rao,  

however, whether seniority was a vested right or not was not  

the issue and the issue was whether pension of a Government  

servant  admissible  under  the  rules  in  force  at  the  time  of  

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retirement  could  be  adversely  affected  by  a  retrospective  

amendment to the rules and the Constitution Bench held that  

such retrospective amendment affected the vested rights and  

was violative of Articles 14 and 16 of the Constitution.  Mr.  

Rao, however, has relied on the following observations in paras  

23 and 24 of the judgment in Chairman, Railway Board & Ors.  

v. C.R. Rangadhamaiah & Ors. (supra):           

“23.  The said decision in  Raman Lal Keshav Lal   Soni1 of  the Constitution Bench of this Court  has  been followed by various Division Benches of  this  Court.  (See  K.C.  Arora v.  State  of  Haryana2;  T.R.  Kapur v.  State of Haryana3;  P.D. Aggarwal v.  State   of U.P.4; K. Narayanan v. State of Karnataka5; Union  of  India v.  Tushar  Ranjan  Mohanty6 and  K.  Ravindranath Pai v. State of Karnataka7.)

24.  In  many  of  these  decisions  the  expressions  “vested rights” or “accrued rights” have been used  while striking down the impugned provisions which  had been given retrospective operation so as to have  an  adverse  effect  in  the  matter  of  promotion,  seniority,  substantive  appointment,  etc.,  of  the  employees. ….”

1 (1983) 2 SCC 33 2 (1984) 3 SCC 281 3 (1986) Supp. SCC 584 4 (1987) 3 SCC 622 5 1994 Supp. (1) SCC 44 6 (1994) 5 SCC 450 7 1995 Supp. (2) SCC 246

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It  will  be  clear  from the  obiter  in para 24 of  the  judgment  

quoted above on which Mr. Nageshwar Rao has relied upon  

that  this  Court  has  included  seniority  as  one  amongst  the  

vested rights or accrued rights on the basis of the decisions of  

this Court noted in para 23 of the judgment quoted above.  We  

have perused the decisions noted in para 23 of the judgment  

and we find that it  is  only in the case of  Union of  India v.  

Tushar Ranjan Mohanty (supra) that a two-Judge Bench of this  

Court has held that seniority of the Tushar Ranjan Mohanty  

was a vested right and this vested right could not be taken  

away by retrospective amendments of the rules.   

12.   In a three-Judge Bench judgment in S. S. Bola & Ors. v.  

B.D. Sardana & Ors. (supra), cited by Mr. Patwalia, however,  

we find that this Court has clearly held that seniority was not  

a vested or accrued right.    Three separate judgments were  

delivered by K. Ramaswamy, J., S. Saghir Ahmad, J. and G. B.  

Pattanaik, J.    K. Ramaswamy, J. has held:  

“no one has a vested right to promotion or seniority.  But an officer has an interest to seniority acquired  by working out the rules.  The seniority should be  

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taken away only by operation of valid law.” [(1997) 8  SCC at 634]  

G. B. Pattanaik, J. has also held:  

“Thus, to have a particular position in the seniority  list  within  a  cadre  can  neither  be  said  to  be  an  accrued  or  vested  right  of  a  Government  servant  and losing some places in the seniority list within  the  cadre  does  not  amount  to  reduction  in  rank  even though the  future  chances  of  promotion  get  delayed thereby. ….”  [(1997) 8 SCC at 666].   

S. Saghir Ahmad, J. has agreed with G. B. Pattanaik, J. and  

has held:  

“In the instant case, the judgments rendered by this  Court  in  the  earlier  decisions  relating  to  the  seniority  of  the  present incumbents were founded  on the  service  rules  then  existing.   These  service  rules have since been replaced by the impugned Act  which has been enforced with retrospective effect.  The various aspects of merits have been considered  by my Brother Pattanaik and I cannot usefully add  any further words on merits. ….”  [(1997) 8 SCC at  639 at para 162].   

It is, thus, clear from the judgment of a larger Bench that  in  

S. S. Bola & Ors. v. B. D. Sardana & Ors. (supra) that seniority  

of a Government servant is not a vested right and that an Act  

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of the State Legislature or a rule made under Article 309 of the  

Constitution  can  retrospectively  affect  the  seniority  of  a  

Government  servant.   The  second  contention  of  Mr.  Rao,  

therefore, also fails.  

13.   Mr. Rakesh Dwivedi, learned counsel appearing for the  

appellants  in  Civil  Appeal  Nos.8082  and  8083  of  2003,  in  

addition to the contention of Mr. Nageshwar Rao, submitted  

that  the  amendment  to  Rule  2  by  G.O.Ms.  No.  51  only  

provides that Forest Range Officers, who secured honours in  

their  batches  in  the  Rangers  Training  Course,  would  be  

deputed  for  training  to  join  two  years  course  of  the  State  

Forest Service College and does not provide for appointment of  

such  Forest  Range  Officers  as  Assistant  Conservators  of  

Forests.

14.    Rule  2  together  with  the  proviso  as  amended  by  

G.O.Ms. No.51 is quoted hereinbelow:

“Rule  2.  Appointment :--  Appointment  to  the  several  categories should be made as follows :

Category Method of Appointment

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Category 1: Chief Conservator              Promotion from Conservators

Category 2: Conservators                     Promotion from Dy.Conservators

Category 2: Dy. Conservators               Promotion from Asst.Conservators

Category 2: Asst. Conservators             Direct recruitment or recruitment

                                                           by transfer  from  Rangers of  the

                                                           Andhra   Pradesh   Sub-ordinate

                                                           Service.

Provided  that  Forest  Range  Officers  who  secured  honours in their batches in the Rangers’ Training Course shall  be eligible for appointment as Assistant Conservators.  They  shall be deputed to join the two years course of State Forest  Service  Colleges  run  by  the  Government  of  India,  treating  them as direct recruits to the post of Asst. Conservators.  The  terms and conditions of training prescribed under clauses (a)  and (b) of Rule 6 of the said Rules for a probationary Assistant  Conservator of Forests appointed by direct recruitment, shall  apply to the persons mentioned above.  Such appointment to  the post of Assistant Conservator of Forests shall be counted  against direct recruitment quota.”

It will be clear from the title of Rule 2 that the rule provides for  

appointment and not for training.   The main provision of the  

rule provides for appointment to four categories of officers of  

the  State  Forest  Services,  namely,  Chief  Conservator,  

Conservators,  Deputy  Conservators  and  Assistant  

Conservators.  The proviso to Rule 2 as amended by G.O.Ms.  

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No.  51  further  provides  that  Forest  Range  Officers  who  

secured  Honours  in  their  batches  in  the  Rangers’  Training  

Course  shall  be  eligible  for  appointment  as  Assistant  

Conservators and after deputation to join the two years course  

of  State  Forest  Service  Colleges  run  by  the  Government  of  

India, will be treated as direct recruits to the post of Assistant  

Conservators.   There is, therefore, no scope for taking a view  

that the proviso to Rule 2 as amended by G.O.Ms. No. 51 is  

not  a  rule  relating  to  appointment  of  Forest  Rangers  as  

Assistant Conservators.   

15.  In the result, we do not find any merit in these appeals  

and we accordingly dismiss the same, but there shall be no  

order as to costs.              

………………………..J.                                                                (Markandey Katju)

………………………..J.                                                                (A. K. Patnaik)

New Delhi, May 11, 2010.    

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